Neither Articles 3 nor 8 required that there be total agreement across the medical profession as to the necessity of non-consensual treatment, provided the Bolam "best interest" test was made out

SUMMARY

The facts are summarised in the report of Silber J's judgment below. The issues before the Court of Appeal were as follows:

1) Whether the judge was right to conclude that, despite the fact that there was a body of responsible medical opinion that the statutory test for medication had not been satisfied, it was nevertheless in the claimant's best interests and necessary for the purposes of article 3 that the proposed treatment should be administered.

2) Whether it was wrong in principle for the judge to seek to decide which medical opinion was correct, allowing cross-examination of the witnesses to enable him to do so. The appellant submitted, in effect, that in a case where there is a responsible body of opinion that a patient is not suffering from a treatable condition, then it cannot be convincingly shown that the treatment proposed is medically necessary.

3) Whether the test for medical necessity for the purposes of Article 3 - where treatment has to have "been convincingly shown" to be a medical necessity " - is the same as the criminal standard of proof

4) Whether the claimant had been deprived of a fair hearing in breach of Article 6 because the SOAD had not given her an adequate opportunity to make representations.

Held:

Appeal dismissed.

1) The contention put forward by the appellant was, in effect, a reverse " Bolam" test: see Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, which was approved by the House of Lords in Bolitho v City and Hackney Health Authority [1998] AC 232. It is too well known to require stating that a professional person is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of persons who practice the same art, merely because there is a body of opinion who would take a contrary view.

2) Cross-examination should only be ordered if this is necessary to enable the court to determine the factual disputes for itself. It may well be clear to the court, simply on a reading of the written material, that the necessity for treatment has not been convincingly shown, and that cross-examination will not lead to a different conclusion. The decision in Wilkinson should be regarded as a charter for routine applications to the court for oral evidence in human rights cases generally.

3) The test for "convincingly shown" is a high one, but not the same as the criminal standard.

4) Even if the judge had decided not to allow oral evidence, any alleged breach of the claimant's article 6 rights based on the way in which the SOAD had conducted the certification process would have fallen away. That is because the judge would have decided the disputed facts for himself, albeit without hearing oral evidence. So far as we are aware, there is nothing in the Strasbourg jurisprudence to indicate that, even in a case where the question whether there has been a violation of a Convention right depends on disputed issues of fact or expert opinion, article 6 requires those issues to be determined by oral evidence.

Per curiam:There is much to be said, in applying the Herczegfalvy test, to ask one single question: has the proposed treatment been convincingly shown to be medically necessary? The answer to that question will depend on a number of factors, including (a) how certain is it that the patient does suffer from a treatable mental disorder; (b) how serious a disorder is it; (c) how serious a risk is presented to others; (d) how likely is it that, if the patient does suffer from such a disorder, the proposed treatment will alleviate the condition; (e) how much alleviation is there likely to be; (f) how likely is it that the treatment will have adverse consequences for the patient; and (g) how severe may they be.

R v West London Health Authority, Orr and Olivieri ex parte N

QBD (Silber J) September 17 2002

SUMMARY

The claimant had been a patient at Broadmoor Hospital since January 1999. She sought in this application to judicially review the decision by the Consultant Psychiatrist, Dr Orr, at the hospital to administer anti-psychotic medicine without her consent, and the decision by the third defendant Dr Olivieri as SOAD to authorise the proposed treatment. She contended, inter alia that any proposed medication would be unlawful, being in breach of Article 3 and Article 8 of the Convention.

The claimant had a history of violent and erratic behaviour but opinion was divided as to whether this stemmed from a genuine psychotic disorder. The SOAD diagnosed that the claimant was suffering from "paranoid psychosis/severe personality disorder". But another independent psychiatrist who examined her concluded that the claimant was fit to stand trial for the offences of which she was charged, that it was very unlikely that she was suffering from a psychotic illness and that she was certainly not a schizophrenic. He therefore considered not only that she should not be given anti-psychotic medication but that she should be sentenced to prison rather than detained under the Mental Health Act. His opinion was that she suffered form an untreatable complex personality disorder.

Following the Court of Appeal ruling in R (Wilkinson) v Broadmoor Special Hospital Authority and Another [2002] 1 WLR 419, the judge here decided that this case involved issues of fact that should be determined by cross examination of medical witnesses, even though this was an unusual process for a judicial review hearing. Since the medical experts had given evidence and been subject to cross examination there was no longer any basis for the claimant's allegation that she had been deprived of a fair hearing contrary to Article 6.

Held:

Application refused. On the basis of the evidence he had heard, the judge concluded that Doctors Orr and Oliviera were correct in their assessments of the claimant, that she would not be able to believe and weigh in the balance information so as to arrive at an informed choice on the proposed treatment. She therefore did not have the requisite capacity to consent. Nor was he persuaded that the treatment would not be in her best interests. The Bolam/Bilitho test had no application in the context of "best interests"; it was a principle tailor-made to deal with the specific question in negligence in relation to what was "reasonable", but had no impact on the court's obligation under Herzegevalfy's case to decide what was the "best test" for the patient, and whether it was medically necessary, both preliminary steps in deciding whether Article 3 was engaged. On the material before him, the judge concluded that the medical necessity for the proposed treatment had been "convincingly" shown. Thus the proposed treatment did not constitute a breach of Article 3. For the same reasons he decided that the treatment was "necessary in a democratic society" both for the protection of the claimant's health and the safety of others.

COMMENT (October 2002)

The central issue in this case is how domestic courts should deal substantively with challenges made by mental health patients to decisions to treat them against their will under the Mental Health Act read in accordance with Articles 3 and 8 of the Convention. The main Strasbourg authority on this is Herczegfalvy v Austria (1992) 50 EHRR 437 which stated that, as a general rule, a method which is a therapeutic necessity cannot be regarded as inhuman or degrading. The court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist.

The question is how the courts should go about determining whether they have been "convinced" that the requisite medical necessity exists. During the run up to the incorporation of the Convention there was some debate over the potential role of the Bolam/Bolitho test in human rights litigation of this sort (see for example Jeremy Hyam, "The Detention of Patients" in Human Rights and The Common Law, Hart Publishing, Oxford 2000 p. 209). In consent cases this meant that once treatment (without consent) was justified by the doctrine of necessity, it could only be criticised if it fell outside the ambit of what treatment would be authorised by a responsible body of medical opinion (see Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, as applied in Re F (Mental Patient) Sterilisation [1990] 2 AC 1).

This case is an example of "Bolam" in reverse. The essence of the claimant's case was that once you have a Bolam reasonable doctor against intervention, then it cannot be said that the necessity for treatment is convincingly shown to exist. Bolam also applies to the test for the best interest of the patient. It used to be sufficient for the courts to appreciate that there was a Bolam view which supported treatment A and a Bolam view which supported treatment B, and they would then leave it to the medical profession to decide. The more recent cases on consent, now compounded with Herczegfalvy, require a more interventionist stance by the court, in other words to choose between several reasonable alternatives. This is only possible if the court has had an opportunity to hear tested under cross examination the evidence concerning these treatments.

Ironically, given Wilkinson, the claimant was resisting such close scrutiny of the medical evidence in this case. Her position was that judicial review should be confined to the papers so that she could see off the intervention by producing one doctor amongs several who could assert that the treatment was not necessary, and that should be the end of the story.

The instant judgment suggests that Bolam/Bolitho in this reverse sense has no part to play in convincing the court of the "medical necessity" for treatment so as to disengage Article 3. In essence this means that if a few responsible doctors took the view that treatment was not suitable, that would not automatically ensure that the court would not approve it. However, it is hard to see in reality how the judge's approach to the differing opinions in this case differs from a straightforward application of the Bolitho test which is essentially to assess conflicting expert opinions and to determine which is the more representative. This is after all the approach taken by Silber J to the medical evidence in this case.